Water resources law (in some jurisdictions, shortened to "water law") is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, and is distinct from laws governing water quality.
Waters subject to regulation Water is ubiquitous and does not respect political boundaries. Water resources laws may apply to any portion of the hydrosphere over which claims may be made to appropriate or maintain the water to serve some purpose. Such waters include, but are not limited to:
Surface waters—lakes, rivers, streams, oceans, and wetlands; Surface runoff—generally water that flows across the land from rain, floodwaters, and snowmelt before those waters reach watercourses, lakes, wetlands, or oceans; Groundwater—particularly water present in aquifers.
History
The history of people's relation to water illustrates varied approaches to the management of water resources. "Lipit Ishtar and Ur Nammu both contain water provisions, pre-date Hammurabi by at least 250 years, and clearly provide the normative underpinnings on which the Hammurabi Code was constructed." The Code of Hammurabi was one of the earliest written laws to deal with water issues, and this code included the administration of water use. At the time the code was written in ancient Mesopotamia, the civilizations in the surrounding lands were dependent on the Tigris and Euphrates rivers to survive. As a result, the leaders needed to develop intricate canal and irrigation systems to sustain their needs for the water. The code was developed about 3,800 years ago by King Hammurabi of Babylonia.
Difficulties of water rights Water is uniquely difficult to regulate, because laws are designed mainly for land. Water is mobile, its supply varies by year, season, and location, and it can be used simultaneously by many entities. As with property law, water rights can be described as a "bundle of sticks" containing multiple, separable activities that can have varying levels of regulation. For instance, some uses of water divert it from its natural course but return most or all of it (e.g. hydroelectric plants), while others consume much of what they take (ice, agriculture), and still others use water without diverting it at all (e.g. boating). Each type of activity has its own needs and can in theory be regulated separately. There are several types of conflict likely to arise: absolute shortages; shortages in a particular time or place, diversions of water that reduce the flow available to others, pollutants or other changes (such as temperature or turbidity) that render water unfit for others' use, and the need to maintain "in-stream flows" of water to protect the natural ecosystem. One theory of history, put forward in Karl August Wittfogel's book Oriental Despotism: A Comparative Study of Total Power, holds that many empires were organized around a central authority that controlled a population through monopolizing the water supply. Such a hydraulic empire creates the potential for despotism, and serves as a cautionary tale for designing water regulations. Water law involves controversy in some parts of the world where a growing population faces increasing competition over a limited natural supply. Disputes over rivers, lakes and underground aquifers cross national borders. Although water law is still regulated mainly by individual countries, there are international sets of proposed rules such as the Helsinki Rules on the Uses of the Waters of International Rivers Archived 2006-10-06 at the Wayback Machine and the Hague Declaration on Water Security in the 21st Century. Long-term issues in water law include the possible effects of global warming on rainfall patterns and evaporation; the availability and cost of desalination technology; the control of pollution; and the growth of aquaculture.
Legal models The legal right to use a designated water supply is known as a water right. There are two major models used for water rights. The first is riparian rights, where the owner of the adjacent land has the right to the water in the body next to it. The other major model is the prior appropriations model, the first party to make use of a water supply has the first rights to it, regardless of whether the property is near the water source. Riparian systems are generally more common in areas where water is plentiful, while appropriations systems are more common in dry climates. As water resource law is complex, many areas have a combination of the two models.
Water law by country
International law
The right to use water to satisfy basic human needs for personal and domestic uses has been protected under international human rights law. When incorporated in national legal frameworks, this right is articulated to other water rights within the broader body of water law. The human right to water has been recognized in international law through a wide range of international documents, including international human rights treaties, declarations and other standards. Additionally, the United Nations passed a resolution stating that the member states "recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights." The human right to water places the main responsibilities upon governments to ensure that people can enjoy "sufficient, safe, accessible and affordable water, without discrimination". Most especially, governments are expected to take reasonable steps to avoid a contaminated water supply and to ensure there are no water access distinctions amongst citizens. Today all states have at least ratified one human rights convention which explicitly or implicitly recognizes the right, and they all have signed at least one political declaration recognizing this right.
Canada Under the Constitution Act, 1867, jurisdiction over waterways is divided between the federal and provincial governments. Federal jurisdiction is derived from the powers to regulate navigation and shipping, fisheries, and the governing of the northern territories, which has resulted in the passage of:
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